TRANSPORT ACCIDENT LAW SPINAL CORD INJURIES Transport accidents account for about 40% of all spinal cord injuries in Victoria. The Transport Accident Commission (TAC) is required to compensate victims of transport accidents in Victoria. The TAC scheme provides no fault compensation that includes hospital and medical coverage, income support and an impairment lump sum benefit. The TAC scheme also provides for seriously injured accident victims to recover common law damages in circumstances where the injury resulted from the negligence of another person. To be able to bring a TAC common law claim an accident victim must have a serious injury. Serious injury has a very specific legal meaning in the context of the TAC compensation scheme. People with spinal cord injuries (SCI) such as paraplegia, quadriplegia, tetraplegia, central cord syndrome, Brown-Sequard syndrome etc. will invariably satisfy the serious injury requirements set out in the Transport Accident Act 1986. For such accident victims the main question is whether the injuries were caused by another person, through either negligence or carelessness.
Where fault can be proved, these accident victims are entitled to both pain and suffering damages and pecuniary loss damages (damages for lost income and impaired earning capacity). Further, in our experience, most of our TAC clients with spinal cord injuries end up having a level of permanent impairment under the AMA Guides greater than 49%, which qualifies them to exercise an option in relation to common law damages. The option referred to above is the right to split their common law claim, that is, to make an election to receive pain and suffering damages only. A claimant with an impairment level greater than 49% can choose to pursue a TAC common law damages claim restricted to pain and suffering damages only. In doing so, the accident victim can stay on TAC no fault weekly income payments, namely loss of earning capacity (LOEC) payments, until normal retirement age and receive a lump sum for pain and suffering in the TAC common law claim. This is particularly relevant in cases where the circumstances of the accident are controversial. For example, in cases where alcohol played a role in the cause of the accident or where the victim was not wearing a seat belt. In such cases, the TAC will often seek a discount on the common law damages reflecting the contribution of the accident victim to their own injuries - contributory negligence. In such cases, it is often wiser to split the common law claim and to thereby retain the no fault income benefits through to retirement age, rather than to capitalise the value of that loss into a lump sum and have that capital sum reduced for liability discounts. - 2 -
Whether or not to split a TAC common law claim is a very significant issue for people with catastrophic spinal cord injuries arising out of transport accidents. It will invariably be the facts of each individual case that will determine whether or not the option should be exercised. Some people would be better off to pursue a claim for both pain and suffering and pecuniary loss (loss of income) in their common law damages claim, depending upon the individual facts of their case. People with TAC spinal cord injuries usually spend many months in the hospital system after the accident. Such injuries invariably require fixation or stabilisation surgery in an acute hospital setting, followed by many months of rehabilitation, usually at Victoria s premier spinal rehabilitation facility the Royal Talbot Rehabilitation Centre. The Victorian Spinal Cord Service (VSCS) provides highly specialised services to victims of spinal cord injury through both the Austin Hospital and its rehabilitation campus, the Royal Talbot Rehabilitation Hospital. In representing countless victims of spinal cord injury we have learned over the years that the precise nature of the spinal cord injury will ultimately determine the extent of each individual s recovery. Not all spinal cord injuries result in a complete severing of the spinal cord. Where the cord is completely severed, little in the way of recovery is ever seen. However, many people suffer SCI that do not involve a complete severing of the spinal cord and such people - 3 -
frequently make quite significant functional gains as a result of medical treatment and rehabilitation. Whilst to the lay person, the mere mention of paraplegia or quadriplegia conjures up images of a complete loss of quality of life, that is not in reality always the case. Before I started acting for people with SCI I used to think that I would prefer to die in an accident rather than end up with quadriplegia. Acting for people with this type of condition has demonstrated to me the extraordinary capacity that humans possess to accept the reality of a devastating and catastrophic injury and to then discover opportunities for a fulfilling life despite severe disabilities. Paraplegic and quadriplegic women can often have children. Similarly, paraplegic and quadriplegic men can, with IVF assistance also father children. Paraplegic men and women can both play a wide range of quite active sports. One of our past clients has gone on to represent Australia in wheelchair tennis at the 2008 Paralympics and has played at an elite level at tournaments all around the world including the Australian Open. Paraplegia, and even quadriplegia, is also not necessarily a total bar to employment and often remunerative and fulfilling employment. Some of our former, and even current, clients with paraplegia and quadriplegia have been able to undertake full-time work. - 4 -
We have seen young quadriplegic men and women with minimal pre-accident education utilise their minds through education and personal development to achieve a great sense of personal fulfilment and satisfaction by developing a broad range of social, intellectual and other interests. There are many SCI victims who ultimately move away from seeing themselves as victims and develop interesting and fulfilling lives. We constantly feel inspired by witnessing the transition that many of our clients with SCI make from the initial trauma, shock and disbelief of their situation, through to the discovery that they make concerning their own future potential. Peter Burt and Clara Davies of Burt & Davies have acted for countless victims of catastrophic spinal cord injuries sustained as a result of transport accidents and other causes. They understand the impact that such injuries have on the accident victim and the victim s family. Importantly, Peter and Clara are both specialists in handling TAC claims for victims of spinal cord injury. For further information contact either Peter Burt or Clara Davies, specialist TAC Lawyers at Burt & Davies, Level 11, 451 Little Bourke Street, Melbourne. Telephone (03) 9605 3111 or freecall 1800 109 940 www.burtdavies.com.au Burt & Davies 2009-5 -